Gordon v. Commonwealth

• Decision Date: 05 January 1880
• Citation: 92 Pa. 216
• Parties: Gordon <I>versus</I> Commonwealth.
• Court: Pennsylvania Supreme Court

Page 216

92 Pa. 216

Gordon versus Commonwealth.

Supreme Court of Pennsylvania.

November 20, 1879.

January 5, 1880.

November 20th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON and TRUNKEY, JJ. STERRETT and GREEN, JJ., absent

Error to the Court of Quarter Sessions of Washington county: Of October and November Term 1879, No. 149.

Crumrine & Murdock, for plaintiff in error.—There is nothing in the oath of the grand juror to prevent him from disclosing what a witness testified to in the grand jury room, when called upon to do so in a judicial proceeding, and in a proper case: Whart. Ev., sect. 601; Commonwealth v. Hill, 11 Cush. 137; Commonwealth v. Mead, 12 Gray 167; Way v. Butterworth, 106 Mass. 75; People v. Hulbut, 4 Denio 133; King v. Marsh, 1 Lead. Crim. Cases (Bennett v. Heard) 270-271.

The oath of the grand juror does not prohibit his testifying what was done before the grand jury, when the evidence is required for the purposes of public justice, or the establishment of private rights: Burnham v. Hatfield, 5 Black. 21.

The witness who testifies before the grand jury, has no privilege to have his testimony treated as a confidential communication, but he ought to be considered as deposing under all the obligations of an oath in judicial proceedings; and, therefore, the oath of the grand juror is no legal or moral impediment to his solemn examination under the direction of the court, as to evidence before him, whenever it becomes material to the administration of justice. * * * When a witness testifies differently in the trial before the petit jury from what he did before the grand jury, the grand jurors may be called to contradict him, whether his testimony be favorable or adverse to the prisoner: The State v. Broughton, 7 Ired. 96.

The testimony of grand jurors is admissible to prove, that a witness on behalf of the prosecution testified differently on his examination before them, from the testimony given by him before the jury at the trial: Commonwealth v. Meade, 12 Gray 169; State v. Fossett, 16 Conn. 466. We, therefore contend, that neither upon principle nor by force of any rule established by the policy of the law, should our offer have been excluded.

Braden & Miller and J. Add. McIlvaine, District Attorney, for the Commonwealth.—The rule of the common law anciently was, that the proceedings before a grand jury in toto were a sealed book. Not only did the policy of the law, in the furtherance of justice, require this, but the jurors were sworn to secrecy. For many years in England, a witness could not be convicted of perjury committed in his examination before a grand jury, except upon the testimony of others than the members of the jury: Regina v. Hughes, 1 C. & K. 519 (47 E. C. L. R.); Regina v. Gazzard, 34 E. C. L. R. 911; 2 Russell on Crimes 912. The first invasion of this rule was, that where a witness is indicted for perjury on account of false testimony before a grand jury, the grand jurors are competent witnesses to prove the facts: 1 Whart. Am. Crim. Law 508; 1 Archibald's Crim. Pr. & Pl. 488, note 1. The next invasion of the ancient rule was, the calling of a grand juror to prove who the prosecutor was in the case: 2 Russell on Crim. Law 912; Sykes v. Dunbar, 2 Selw. N. P. 1075. The New York and Massachusetts statutes are consistent with these departures.

In Pennsylvania, we have no statute modifying the old common law on this subject, further than Sykes v. Dunbar, supra, does; and we have, as far as we can find, only one deliverance of the Supreme Court on this subject: Huidekooper v. Cotton, 3 Watts 56; and this in no way makes a further modification so as to admit the defendants's offer.

We take it, that there are no authorities cited on the other side nor are there any as far as we know, that would allow a grand juror in this state to testify as proposed in the offer of the defendant below. He can testify in a perjury case arising out of the examination of a witness before the grand jury; he can testify as to who the prosecutor was, in a case where the bill was ignored; and he might testify whether a particular person was examined before the grand jury or not. Any further modifications of the old common law than these, are found in other states, and arise out of constitutional and statutory provisions.

Mr. Justice MERCUR delivered the opinion of the court, January 5th 1880.

This was a prosecution for seduction, fornication and bastardy. The prosecutrix testified that the plaintiff in error had criminal connection with her on the 2d, 5th and 6th respectively, of September 1877. On cross-examination she answered that she was a witness before the grand jury at the January Sessions 1878, on a charge of rape against him, and then testified that the rape was committed on the 29th of September 1877. She was further questioned whether, on that hearing she was not asked by the foreman of the grand jury, if prior to the 29th September, the time of the alleged rape, Mr. Gordon ever had criminal connection with her, and whether in answer thereto she did not say "No. He had frequently insisted upon it, but I had always refused him. That was the first, last and only time." She swore she was not asked that question, and made no such answer. With a view of casting discredit on her testimony, and impairing her character as a witness, the plaintiff in error called the foreman of that grand jury, and proposed to prove by him that he did then ask her that question, and that she so answered. The question put to the grand juror was objected to, principally on the ground that it was against the policy of the law to permit a grand juror to disclose what was sworn to in the grand jury room. The court sustained the objection. This constitutes the sole ground of alleged error.

If the witness be incompetent for the purpose offered, it must be by reason of public policy. The question to its full extent does not appear to have been ruled by this court. As the rule was held at an early day he would be incompetent. For a long time, however, the courts have gradually been modifying its strictness, and manifesting a determination to distinguish between the character of the evidence offered. The juror may be a competent witness...